Article II of the U.S. Constitution vests the executive power of the federal government in a president, not a king. Kings rule by fiat. The president is supposed to govern with the consent of the people and in coordination with Congress and the judiciary, the two other co-equal branches of government.

Donald Trump, our 45th president, has never accepted our constitutional structure of
checks and balances, asserting instead, as he did in a speech last July, that under Article II, "I have the right to do whatever I want as president."

<p>
On May 12, the Supreme Court will have an opportunity to rebuke or endorse Trump's pretensions to monarchical grandeur when it hears oral arguments in three cases that have the potential to redefine the nature and scope of presidential power.
</p><p>
The cases before the court are <a href="https://www.scotusblog.com/case-files/cases/trump-v-mazars/" target="_blank"><em>Trump v. Mazars USA, LLP</em></a>; <a href="https://www.scotusblog.com/case-files/cases/trump-v-deutsche-bank-ag/" target="_blank"><em>Trump v. Deutsche Bank AG</em></a>; and <a href="https://www.scotusblog.com/case-files/cases/trump-v-vance/" target="_blank"><em>Trump v. Vance</em></a>. In the first two, the president is trying to block congressional subpoenas seeking access to his personal financial records. In the third, he's asking the court to block a subpoena issued by a New York City grand jury, and to accord him unprecedented <a href="https://www.supremecourt.gov/DocketPDF/19/19-635/123290/20191121170256300_19-635%20Brief%20in%20Opposition.pdf" target="_blank">"absolute immunity"</a> from state criminal investigations.
</p><script async="" src="//pagead2.googlesyndication.com/pagead/js/adsbygoogle.js"></script>
<!-- NatMemo_Middle_Desktop_2 -->
<ins class="adsbygoogle NatMemo_Middle_Desktop_2" data-ad-client="ca-pub-8573325940152694" data-ad-slot="NationalMemo\/NatMemo_Middle_Desktop_2" style="display:inline-block;width:728px;height:90px"></ins>
<script>
(adsbygoogle = window.adsbygoogle || []).push({});
</script><p>
None of the subpoenas seeks information regarding the president's official acts. All concern his private conduct and his personal business affairs.
</p><p>
The subpoenas in the three cases are similar, but not identical. In <em>Deutsche Bank</em>, the House Committee on Financial Services and the House Permanent Select Committee on Intelligence have <a href="https://www.cnbc.com/2019/03/19/deutsche-bank-loaned-2-billion-to-donald-trump-over-two-decades-nyt.html" target="_blank">directed</a> the German-based conglomerate and Capital One to produce Trump's personal records dating back to 2010, including his much-ballyhooed and as-yet-unreleased tax returns. The subpoenas also seek records pertaining to his children Donald Trump Jr., Eric Trump, and Ivanka Trump.
</p><p>
The Trump family has <a href="https://bit.ly/2ynKXLY" target="_blank">accounts</a> with both financial institutions. Deutsche Bank is alleged to have <a href="https://www.cnbc.com/2019/03/19/deutsche-bank-loaned-2-billion-to-donald-trump-over-two-decades-nyt.html" target="_blank">loaned the president more than $2 billion</a> over two decades. The House committees contend the subpoenas were issued in furtherance of their oversight responsibilities, and that the records are needed to help them draft legislation to <a href="https://cases.justia.com/federal/appellate-courts/ca2/19-1540/19-1540-2019-12-03.pdf?ts=1575387006" target="_blank">protect future American elections</a> from the kind of foreign influence that marred the last presidential campaign.
</p><p>
In <em>Mazars</em>, the House Committee on Oversight and Reform has demanded that Trump's principal accounting firm turn over eight years of financial materials, covering the period of 2011 to 2018, detailing work performed on behalf of Trump, the Trump Organization and other businesses owned by the president. The <a href="https://casetext.com/case/trump-v-mazars-usa-llp" target="_blank">committee contends it needs the records</a> to decide whether to revise or supplement current ethics-in-government laws.
</p><p>
The president's lawyers have <a href="https://www.supremecourt.gov/DocketPDF/19/19-715/130092/20200127191622299_19-715%20and%2019-760%20Brief%20for%20Petitioners.pdf" target="_blank">countered</a> in both cases that the House is illegally engaging in law-enforcement actions rather than pursuing legislation, and prying into his private life for political purposes.
</p><p>
There is no ambiguity that the <a href="https://www.supremecourt.gov/DocketPDF/19/19-635/122492/20191114165617860_Petition%20for%20Writ%20-%20Trump%20v%20Vance.pdf" target="_blank">subpoena in <em>Vance</em></a> was designed for law-enforcement purposes. The subpoena was issued by a grand jury under the direction of Manhattan District Attorney Cyrus Vance. It was also served on Mazars, and largely requests the same information as the one issued by the House.
</p><script async="" src="//pagead2.googlesyndication.com/pagead/js/adsbygoogle.js"></script>
<!-- NatMemo_Middle_Desktop_3 -->
<ins class="adsbygoogle NatMemo_Middle_Desktop_3" data-ad-client="ca-pub-8573325940152694" data-ad-slot="NationalMemo\/NatMemo_Middle_Desktop_3" style="display:inline-block;width:728px;height:90px"></ins>
<script>
(adsbygoogle = window.adsbygoogle || []).push({});
</script><p>
Although <a href="https://codes.findlaw.com/ny/criminal-procedure-law/cpl-sect-190-25.html" target="_blank">New York grand jury proceedings are secret</a>, the <em><a href="https://www.nytimes.com/2019/10/07/nyregion/trump-taxes-lawsuit-vance.html" target="_blank">New York Times</a> </em>has reported that Vance is investigating whether the state's fraud and tax laws were violated when the president's longtime "fixer" Michael Cohen, now a convicted felon, was reimbursed for making "hush money" payments to pornographic film star Stephanie Clifford, aka "Stormy Daniels," and former <em>Playboy</em> <em>Magazine</em> model Karen McDougal during the 2016 campaign to buy their silence about alleged affairs with Trump.
</p><p>
The president's legal team, which he has privately retained, is headed by Washington, D.C., attorney <a href="https://fedsoc.org/contributors/william-consovoy" target="_blank">William Consovoy</a>, a former law clerk of Supreme Court Justice Clarence Thomas. The group also includes some familiar faces, such as <a href="https://en.wikipedia.org/wiki/Jay_Sekulow" target="_blank">Jay Sekulow</a>, who helped defend the president in his Senate impeachment trial and regularly appears on cable television to sing his praises. Sekulow is the chief counsel at the American Center for Law and Justice, <a href="https://www.rightwingwatch.org/post/jay-sekulow-heads-trumps-legal-team-shares-his-dubious-relationship-with-the-truth/" target="_blank">a religious-right organization founded in 1990 by Pat Robertson</a>.
</p><p>
Trump's personal lawyers have been joined in the cases by William Barr's Department of Justice, which has entered the litigation as an <a href="https://www.supremecourt.gov/DocketPDF/19/19-715/130825/20200203173620062_19-715tsacUnitedStates.pdf" target="_blank"><em>amicus curiae</em></a> ("friend of the court") to support the president.
</p><p>
Chief Justice John Roberts and his colleagues <a href="https://www.npr.org/2019/12/13/787963186/supreme-court-agrees-to-hear-trump-subpoena-cases" target="_blank">agreed to hear the cases</a> in December after lower federal courts upheld the validity of the subpoenas. The <em>Mazars</em> and <em>Deutsche Bank</em> cases were consolidated for joint resolution, as they involve the same legal questions about congressional oversight. Oral arguments were originally scheduled for March, but were pushed back to May 12 after the court was <a href="https://www.vox.com/2020/3/12/21177399/supreme-court-closed-coronavirus-ruth-bader-ginsburg-stephen-breyer" target="_blank">closed to the public</a> in the wake of the COVID-19 pandemic. In a historic departure from standard practice, the proceedings will be conducted by <a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-justices-hear-oral-arguments-history-making-phone-call-n1193651" target="_blank">teleconference</a>, along with the other remaining arguments on the court's docket.
</p><p>
Taken as a package, the subpoena cases raise profound issues that harken back to the nation's founding era. If fully decided on all issues, the cases will force the court to reexamine the <a href="https://www.acslaw.org/issues/separation-of-powers-federalism/" target="_blank">basic separation of power principles</a> embedded in the Constitution, not only between the coordinate branches of the federal government in <em>Mazars</em> and <em>Deutsche Bank</em>, but also between the federal government and the states in <em>Vance</em>. In short, the court will be asked to decide if Trump is beyond accountability and in effect, above the law.
</p><p>
The president's lawyers face a daunting task. To prevail in <em>Mazars</em> and <em>Deutsche Bank</em>, they will have to persuade the Supreme Court to severely curtail Congress' long-established <a href="https://fas.org/sgp/crs/misc/97-936.pdf" target="_blank">oversight powers</a>, and find that the subpoenas in dispute serve no legitimate legislative purpose. They will also have to persuade the court to disregard or limit its 1974 ruling in <a href="https://supreme.justia.com/cases/federal/us/418/683/" target="_blank"><em>United States v. Nixon</em></a>.
</p><p>
In <em>Nixon</em>, the court ordered then-President Richard Nixon to turn over clandestine White House audiotapes to Watergate Special Prosecutor Leon Jaworski, rejecting Nixon's invocation of executive privilege. The fact that the current subpoenas were served on third-party custodians of the president's records rather than the president himself hardly seems a sound basis for departing from a landmark pillar of American constitutional law.
</p><p>
The obstacles confronting Trump's attorneys in <em>Vance</em> are arguably even greater, as they will have to overcome the strictures of the <a href="https://constitution.findlaw.com/amendment10.html" target="_blank">10th Amendment</a>, which reserves to the states powers not delegated to the federal government. Although the Justice Department has a <a href="https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf" target="_blank">longstanding policy</a> against indicting a sitting president for federal crimes, that policy has never been tested in court, and in any event does not apply to state crimes. No prior Supreme Court decision has ever suggested that the president enjoys "absolute immunity" from even the preliminary stages of state investigations, as <a href="https://www.supremecourt.gov/DocketPDF/19/19-635/130085/20200127185825281_19-635%20Brief%20for%20Petitioner.pdf" target="_blank">Trump now claims</a>.
</p><p>
There is no guarantee, of course, that the Supreme Court will stand up to the president. The court is now firmly in Republican hands. And while Chief Justice Roberts has <a href="https://www.nbcnews.com/nightly-news/video/chief-justice-roberts-challenged-trump-for-obama-judge-comment-in-rare-rebuke-1377384515923" target="_blank">publicly feuded</a> with Trump on the subject of judicial independence in the abstract, the court in practice has upheld some of Trump's most draconian initiatives, including his Muslim travel ban in a 2018 <a href="https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf" target="_blank">5-4 majority decision</a> written by Roberts himself.
</p><p>
On April 27, the court signaled that it may indeed be looking for a way to dismiss the <em>Mazars</em> and <em>Deutsche Bank</em> cases when it requested the parties to <a href="https://thehill.com/regulation/court-battles/494800-supreme-court-orders-more-arguments-in-case-over-trumps-financial" target="_blank">submit supplemental briefs</a> on the "political question" doctrine. The doctrine requires the court to stay out of what it considers to be purely political disputes between the executive and legislative branches of government. The court <a href="https://www.scotusblog.com/case-files/cases/rucho-v-common-cause-2/" target="_blank">invoked the doctrine last year</a> to dismiss two major gerrymandering cases it had agreed to review.
</p><p>
It's always difficult to predict the outcome of Supreme Court cases, but one thing is abundantly clear—any rulings in Trump's favor will mark a defeat for democracy and a triumph for the divine right of kings.
</p><p>
<em><a href="https://independentmediainstitute.org/imi-articles/?author=Bill+Blum" target="_blank">Bill Blum</a> is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: <a href="https://www.amazon.com/Prejudicial-Error-Bill-Blum/dp/0525939059/?tag=alternorg08-20" target="_blank">Prejudicial Error</a>, <a href="https://www.amazon.com/Last-Appeal-Bill-Blum/dp/1521483795/?tag=alternorg08-20" target="_blank">The Last Appeal</a>, and <a href="https://www.amazon.com/Face-Justice-Bill-Blum/dp/1521757399/?tag=alternorg08-20" target="_blank">The Face of Justice</a>.</em>
</p>

Justice Ruth Bader Ginsburg was hospitalized on Tuesday because of what the Supreme Court said was a "benign gallbladder condition" that caused an infection.

A release from the court described her condition as acute cholecystitis. She received non-surgical treatment for the condition on Tuesday afternoon at Johns Hopkins Hospital, according to the court.

<p>"Following oral arguments on Monday, the Justice underwent outpatient tests at Sibley Memorial Hospital in Washington, D.C., that confirmed she was suffering from a gallstone that had migrated to her cystic duct, blocking it and causing an infection," it explained. "The Justice is resting comfortably and plans to participate in the oral argument teleconference tomorrow morning remotely from the hospital. She expects to stay in the hospital for a day or two. Updates will be provided as they become available."</p>

When President Bill Clinton nominated Justice Ruth Bader Ginsburg for the U.S. Supreme Court in 1993, the nation’s highest judicial body wasn’t as hard-right as it is now — although President Ronald Reagan and President George H.W. Bush had clearly made the High Court more conservative than it was in the days of the late Chief Justice Earl Warren. The U.S. Supreme Court has moved more and more to the right since the Clinton years, and a January 9 article by CNN legal analyst Joan Biskupic examines Ginsburg’s influence on what is now the Court’s minority wing.

Although Ginsburg is part of the Court’s “liberal minority,” Biskupic explains, the 86-year-old Brooklyn native “has a way of steering the debate on a case.” Ginsburg “regularly asks whether the Supreme Court should even decide the legal issue before it,” Biskupic notes —and “by framing the debate in this way, Ginsburg could limit the five conservative justices from setting new precedent over the dissent of the Court’s four liberals,” according to CNN’s legal analyst.

In a January 7 interview, Ginsburg told CNN, “It’s just instinctive to me: procedure is supposed to serve the people that law exists to serve.”

A major shift occurred on the Supreme Court in 2018, when Justice Anthony Kennedy retired and was replaced by Justice Brett Kavanaugh. While Kennedy, nominated by President Ronald Reagan in 1987, was a right-wing libertarian and a fiscal conservative, he tended to side with Ginsburg on social issues like same-sex marriage and abortion — whereas Kavanaugh is a hardline social conservative along the lines of Justice Clarence Thomas and the late Justice Antonin Scalia. And with Kavanaugh now on the Court, Ginsburg has even less help when it comes to pushing back against the Court’s socially conservative justices.

“With the 2018 retirement of centrist conservative Justice Anthony Kennedy, succeeded by Brett Kavanaugh, the High Court is positioned for more conservative rulings and reversal of precedents from earlier eras,” Biskupic explains. “Over the past year, liberal justices have emphasized at arguments and in opinions the value of past milestones and stability in the law.”

In a 2013 interview, Scalia made it clear that even though he usually disagreed with Ginsburg, he respected her intellect—asserting, “She has done more to shape the law in this field than any other justice on this Court. She will take a lawyer who is making a ridiculous argument and just shake him like a dog with a bone.”

Ginsburg, during her CNN interview earlier this week, said of Scalia, “I wish he had listened to me more often.”

Technically, the high court said Friday that it will take up whether Trump’s tax returns and supporting financial records must be turned over to three different investigations.

The deep issue in all three cases is whether the justices will embrace Trump’s claims of being above the law.

The crucial case for Trump is the Manhattan district attorney’s probe which involves subpoenas issued by a pair of House of Representatives committees.

Significantly, the high court is not taking up the most clear-cut allegation of Trump violating his oath of office with regard to his taxes.

The House Ways and Means Committee asked the IRS for six years of Trump’s tax returns under a 1924 anti-corruption law. It says any return requested by the committee chairman “shall” be provided, a right also enjoyed by every president.

But Trump claims he doesn’t have to comply because House Democrats want to embarrass him and have no legitimate legislative purpose.

There is no other known case of the IRS failing to comply with such requests.

Trump Above the Law

The deep issue in the three cases the Court is taking up is whether the justices will embrace Trump’s claims of being above the law. I doubt that, but if the high court proves me wrong, our liberties and our republic will be in deep jeopardy.

The two Congressional subpoena cases also go to the heart of our Constitutional system with its three co-equal branches of government.

Repeatedly, Trump has shown his utter contempt for this separation of powers. He, like a dictator, has denounced judges who don’t rule as he wishes. He also claims he is free to ignore any Congressional subpoena he dislikes.

Federal trial and appeals courts have rejected every Trump argument to shield tax and accounting records.

Actions Before Presidency

Significantly, the Manhattan case includes suspected tax cheating when Trump was a private citizen. No federal court has ever held that a president has immunity from investigation, much less for actions before taking office.

Unresolved is whether such a delay would let a president run out of the clock on statutes of limitations or whether the time periods would be tolled… legal speak for freezing deadlines for government action.

While still in his 30s, Trump beat four federal grand jury investigations into his connections with corrupt lawyers, real estate figures, and railroad interests, as first reported by the late Wayne Barrett in his 1992 book Trump: The Deals and the Downfall. In two cases, Trump, with help from the notorious lawyer Roy Cohn, simply ran out of the clock on the grand juries.

Why Hide Records?

What has not been raised in these proceedings over subpoenas for Trump’s tax records, and likely will go unmentioned before the Supreme Court, is that Trump’s past conduct explains why he is fiercely trying to conceal records.

Trump lost two income tax fraud trials over his 1984 New York state and city tax returns, a story I broke before the election in 2016. Trump falsified one of the returns. His longtime tax lawyer, Jack Mitnick, testified that while his name was on the return, he did not prepare it.

The document in evidence, the only copy known to exist, was a photocopy. A signature can be faked using photocopy technology.

Weeks later I wrote about the mystery of the Trump Soho tower profits, which disappeared into an Icelandic bank under the thumb of a Russian oligarch, a deal that Trump had approved in writing. Trump was due 18 percent of the profits. The headline: “Is A Crook Hiding in Trump’s Taxes?“

In addition, Trump went to extraordinary lengths—farcical really—to hide Grand Hyatt Hotel accounting records from New York City, a story told in my 2016 hardcover The Making of Donald Trump. Auditors eventually proved Trump had tried to cheat the city out of almost $3 million in rent.

Ready to Comply

In the Manhattan case the Supreme Court has agreed to consider, Trump sued to block the release of eight years of his tax returns and the financial records used to prepare the tax returns by Mazars USA, his accounting firm, and by Deutsche Bank. Mazars and the bank both say they will turn over the records to Manhattan District Attorney Cyrus Vance Jr. if the courts uphold the subpoenas.

During arguments in the Second Circuit Court of Appeals, Federal Judge Denny Chin said he was skeptical of the argument by Trump’s lawyer that Trump is immune from investigation:

“Local authorities couldn’t investigate? They couldn’t do anything about it?… That is your position?”

“That is correct,” attorney Consovoy replied.

Two weeks later the federal appeals court held that was incorrect. It upheld the Manhattan grand jury subpoenas. Jay Sekulow, another Trump lawyer, immediately announced an appeal to the Supreme Court.

So here we are, our Supreme Court about to consider what the framers of our Constitution considered unthinkable: Is Trump above the law, even the law against murder, just because he is president?

About The National Memo

The National Memo is a political newsletter and website that combines the spirit of investigative journalism with new technology and ideas. We cover campaigns, elections, the White House, Congress, and the world with a fresh outlook. Our own journalism — as well as our selections of the smartest stories available every day — reflects a clear and strong perspective, without the kind of propaganda, ultra-partisanship and overwrought ideology that burden so much of our political discourse.